Major Gay Marriage Gain in N.Y.

Comptroller Alan Hevesi says that state pension plan will recognize Canadian gay marriages

New York State Comptroller Alan Hevesi, in a decision that lends substantial heft to the battle for same-sex marriage rights in this state, released a letter Wednesday saying that for purposes of state employee pension benefits, his office and the New York State and Local Retirement System (NYSLRS) will recognize gay and lesbian marriages sanctioned in Canada.

The statement from Hevesi, a Democrat, which was accompanied by a five-page legal memorandum written by George S. King, counsel to the Retirement System, echoes an opinion issued by state Attorney Gen. Eliot Spitzer, also a Democrat, on March 3 that, under New York law, marriages legally entered into in other jurisdictions are recognized under this state’s laws.

Hevesi’s announcement, however, marks the first time that the executive branch of the New York State government has promised specific spousal benefits for gay and lesbian couples whose marriages will be recognized by the state. With the comptroller’s decision, gay and lesbian New Yorkers have won the first tangible state benefits of same-sex marriage.

In a telephone interview Wednesday, Hevesi emphasized that his office did not initiate action on this issue, but rather responded to a September 28 written query from Mark Daigneault, a 37-year-old employee of the state Insurance Department, who is interested in protecting his relationship with his partner of 13 years, David, and their family of two young sons the couple jointly adopted.

“My letter emerged from a process that was completely ordinary and routine,” the comptroller said, “even though the content was something other than ordinary.”

Hevesi noted that NYSLRS, the nation’s second largest public pension system, has nearly 965,000 members, one-third of whom are retired. About 700 employees of the Comptroller’s office routinely respond to requests from state workers and retirees about their pension benefits.

Insisting that he “did not take politics into consideration in making this decision,” Hevesi said his office’s response was based on a straightforward matter of law.

The ruling from the comptroller, however, is sure to rile opinion in Albany, where the state legislature and Gov. George Pataki have moved gradually on gay rights and partnership benefits—most recently enacting a hospital visitation law championed by Manhattan Democratic Assemblywoman Deborah Glick—but have studiously avoided taking concrete steps, one way or the other, on the question of gay marriage.

“Alan’s ruling is magnificent and entirely correct,” said Assemblyman Richard Gottfried, the Manhattan Democrat who first introduced a gay “Right to Marry” bill in Albany. Gottfried, who said he had not been advised of the comptroller’s action prior to receiving Gay City News’ call, added. “There is absolutely no basis in New York law for not recognizing a Massachusetts or Canadian same-sex marriage. But it is important that the comptroller has now joined the New York attorney general in saying so.”

State Sen. Thomas Duane, a gay Democrat who is the Senate sponsor of the “Right to Marry” bill, said, “This is a terrific

day. It should be noted that Alan Hevesi was the first major public official in New York to endorse same-sex marriage. This shows that he continues to be a champion of the rights of the LGBT community.”

Hevesi’s letter to Daigneault was first made public early Wednesday in a release from the Empire State Pride Agenda (ESPA), the state’s gay lobbying group.

Alan Van Capelle, ESPA executive director, praised Hevesi and said that “every government entity, every employer, every organization that deals with marriage in New York should be taking the same position.”

“It also happens to be the pro-family thing to do,” Van Capelle added.

Asked what role ESPA played in working with Hevesi to make Wednesday’s announcement possible, Van Capelle would only say, “We have been talking to lots of people in government about many things they could do. The comptroller was always very receptive to having conservations like that.”

Alphonso David, a staff attorney with Lambda Legal, which has been a leader in the fight for same-sex marriage rights in courtrooms nationwide, said, “The comptroller has simply interpreted the law as Attorney General Eliot Spitzer and at least one trial judge has read it.”

David was referring to a 2003 ruling by a State Supreme Court justice in Manhattan that found that for purposes of suing St. Vincent’s Hospital for alleged wrongful death liability, a gay man who entered into a Vermont civil union with his late partner had standing under New York law as a spouse.

At least one top New York State official appeared caught off-guard by the Hevesi announcement. Assembly Speaker Sheldon Silver, a Manhattan Democrat, had not yet heard about Hevesi’s announcement by early afternoon on Wednesday, according to his spokesman Skip Carrier. Pataki’s office said that it would “review the comptroller’s decision,” and the office of Republican Senate Majority Leader Joseph Bruno did not return a call seeking comment.

Michael Long, who leads the state Conservative Party, which exerts enormous pressure on the Republicans to oppose gay rights, also did not return a call seeking comment.

It would not be surprising if Long and conservatives within the Republican ranks point to the Hevesi decision as a reason for the Legislature to take up a state version of the federal Defense of Marriage Act (DOMA). Both Spitzer and Hevesi in their opinions noted that New York typically recognizes marriage legally entered into in other jurisdictions, unless such “recognition has been expressly prohibited by statute.”

Yet, none of the Democrats interviewed for this story—Hevesi, Duane or Gottfried—expressed particular concerns on that score. Nor did they voice worries that the announcement might inflame the nationwide debate on gay marriage as John Kerry and George W. Bush head into the critical stretch of the presidential campaign.

“I am not overly concerned,” said Duane when asked about a backlash. “We always have to be watchful, but there is no stomach in the Legislature for a state DOMA. I know there are those worried about the Conservative Party, but I’ve yet to see them achieve their agenda in Albany and I’ve been there six years. I think they are something of a paper tiger.”

“I think that the Republicans have found that there is no advantage to them in attacking the LGBT community,” Gottfried said. “That does not mean that they are about to rush the Duane-Gottfried bill to the floor. But, they have so far very pointedly refrained from doing any DOMA activity.”

In Hevesi’s view, his action will have little impact on the efforts of national groups seeking to inflame opinion against same-sex marriage.

“I don’t think that they need this to make their case against gay marriage. They have Massachuse­tts,” he said. “To anyone who tries to fearmonger this issue, we should say we are just good Americans following the law.”

ESPA’s Van Capelle was equally nonchalant about the potential for adverse reaction to the comptroller’s ruling.

“Every time we take two steps forward, there is always the risk that someone wants to try to take us back,” he said. “If that stops us, then our opponents will win.”

Reminded that the presidential election is just three weeks off, he added, “Everything that happens right now is seen as political. This was something that is very routine. A state employee wrote a routine request.”

Both Hevesi and Spitzer, in weighing in on New York recognition of out of state marriage, invoked the doctrine of “comity,” by which the state respects marriages performed elsewhere. This doctrine is not written into state statute, but has significant precedence in court rulings. In numerous cases throughout New York history, courts have upheld marriages even if they would not have been valid in New York, so long as they were not specifically forbidden in law or “abhorrent” to public policy. These rulings have included recognition of common-law marriages, marriages entered into at ages lower than allowed in this state, and, specifically, Canadian marriages.

Both Spitzer and Hevesi also pointed to the lawsuit against St. Vincent’s, even though the ruling that the surviving partner has standing as a spouse is still working its way through the appellate courts. Lambda Legal represents the plaintiff in that lawsuit, and David said that even if the decision about spousal standing for a partner in a Vermont civil union were not upheld, it would not necessarily have direct bearing on the opinions by Hevesi and Spitzer. The comptroller echoed that view.

When asked whether his ruling would also apply to Massachusetts marriages, Hevesi voiced uncertainty, mentioning concerns about litigation surrounding the federal DOMA and issues of full faith and credit among the states. David offered a somewhat different response, saying that even though the comptroller’s opinion specifically addressed Canadian marriages, the logic should also apply to legal same-sex marriages recognized by any of the states. The only problem presented by Massachusetts marriages, he said, was the ongoing litigation challenging the 1913 law there that forbids out-of-state residents from marrying there if the marriage would be “void” in their home states. Republican Gov. Mitt Romney has invoked that law to forbid out-of-state gay marriages unless the couple stipulates an intention to move to Massachusetts.

For Mark Daigneault and his partner David, Hevesi’s decision, though important, represents just “the first step in finding out about our rights if we get married in Canada.” Daigneault said the couple had a commitment ceremony, which they considered their “wedding,” in the garden of the gay and lesbian community center a decade ago. They are registered domestic partners in Albany, though they now live outside that city, own a home together and have made out their wills with each other as beneficiary. As Mark’s domestic partner, David would get certain pension benefits, but as a spouse would additionally be eligible for cost of living increases on benefits paid and an accidental death benefit not available to domestic partners.

Significantly, Hevei’s ruling also places obligations on gay couples. In the event of a divorce, pension benefits would be considered in dividing property.

Daigneault, who said he consulted with ESPA as he explored his rights under a Canadian marriage, was clearly pleased by the response he got from Hevesi.

“I am very glad that the comptroller has made this decision,” he said in a telephone interview Wednesday. “I am glad as a dad that we are getting closer to equal benefits and equal rights for our family.”